University of Chicago Law School Professor Laura Weinrib bemoaned recent decisions by the ACLU to defend free speech in a Wednesday op-ed for the LA Times.
Weinrib took to the pages of the Los Angeles Times to condemn the ACLU’s recent decisions to defend speech rights of white supremacists who rallied in Charlottesville on August 11 and 12. In the aftermath of the rally, the ACLU released a statement defending the rights of the marchers, clarifying only that the First Amendment “does not protect people who incite or engage in violence.”
Writing in her op-ed, Weinrib questions the assumptions commonly made about the ACLU’s history of defending the speech rights of extremists. She reminds readers that the ACLU primarily views free speech as a tool of social justice. That is, the First Amendment provides a means of expression for marginalized persons to liberate themselves through expression.
Commentators have rightly observed that the ACLU has defended far-right speech since its founding, despite fierce criticism. But there is a common and mistaken premise in this analysis. It assumes that the organization has always believed, as it does today, that “freedom of expression is an end in itself.” In reality, the early ACLU viewed free speech as a tool of social justice, suited to particular purposes under particular conditions.
Professor Weinrib argues that the ACLU’s defense of Nazi speech in the 1930s was a product of the historical moment.
Yet the ACLU’s defense of Nazi speech in the 1930s was never untethered from the exigencies of its historical moment. In the words of co-founder Roger Baldwin, it was “the only sound position to get the results you want—at least in this country and at this particular period.” The ACLU weighed the transformative power of workers’ strikes and protests against the possibility that America would succumb to fascism. The upsurge of progressivism that swept President Franklin D. Roosevelt into office made the former a reasonable bet.
Towards the end of her column, Weinrib bemoans the eager defenders of the First Amendment, cautioning them to consider the impact of the speech rights that were afforded to groups like the Nazis in 20th century Germany.
Today’s 1st Amendment has plenty of eager defenders. As the ACLU reassesses its agenda, it should consider a warning issued by a disaffected board member when, on the brink of World War II, the organization assumed its current neutral posture. “Speech and the other civil liberties are meaningful only to men who dare to use them,” he insisted—and “before ‘daring’ come bread and water, come roots in the community, comes respite from fear.”
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